Attachment L: Escrow Agreement

Transcription

1 Attachment L: Escrow Agreement This Source Code Escrow Agreement ("Escrow Agreement"), is made and entered into on this [ ] day of [ ], 2011 ("Effective Date") by and among [Contractor] (hereinafter, "Owner"), New York State Department of Environmental Conservation, a New York State agency with a place of business at 625 Broadway, 5th Floor, Albany, NY (hereinafter, "Licensee"), and Escrow Agent Name as escrow agent (hereinafter, "Escrow Agent"). WHEREAS, Owner and Licensee have entered into that certain Contract, dated as of [ ], 2011 ("License"), which provides for, among other things, the license by Licensee of certain software programs ("Software") in accordance with the terms and provisions thereof; and WHEREAS, the availability and maintenance of such Software is critical to Licensee in the conduct of its business and, as a consequence, Owner has agreed to deposit in escrow a copy of the materials described in Attachment A to the Escrow Agreement (such materials individually shall be referred to as a "Deposit," and collectively referred to as the "Deposits" or "Deposit Materials"); and WHEREAS, the Deposits are to be held by Escrow Agent in accordance with the terms and conditions of the Escrow Agreement. NOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein, the parties agree to the foregoing and as follows: ARTICLE 1 CREATION AND MAINTENANCE OF ESCROW; ESCROW AGENT OBLIGATIONS 1.1 Creation and Maintenance of Escrow. Pursuant to the terms of the License, Owner has licensed to Licensee various Software, which Software may be grouped into "applications," referred to herein as an "Application Set". With respect to each Application Set, Owner shall separately package the Deposit Materials and, within each such package, separately label the Deposit Materials in accordance with the definitions in Attachment A so that the Deposits for each Application Set can be identified easily by Escrow Agent and Licensee. On or before the Effective Date, Owner shall deposit with Escrow Agent the current release of the Deposits for the Software licensed by Licensee from Owner as of the Effective Date ("Initial Deposits"). With respect to Software licensed by Licensee subsequent to the Effective Date, Owner shall deposit with Escrow Agent the then-current release of the Deposits for such Software (for purposes herein, such additional Deposits shall be considered "Initial Deposits") within thirty (30) calendar days following the date on which Licensee and Owner agree in writing to the license of such additional Software. With respect to all Software licensed by Licensee from Owner, Owner further agrees to deposit current copies of the materials described in Attachment A ("Supplemental Deposits") with Escrow Agent on: (a) the six (6)-month anniversary of the Effective Date and every six (6) months thereafter; and (b) the date on which Owner issues a

2 major release of the Software. If Supplemental Deposits for any Application Set consist of a full and complete deposit of the Deposit Materials for such Application Set, Escrow Agent shall be entitled to destroy the prior Deposit Materials for such Software: (c) upon Licensee's Verification of such Deposits pursuant to Article 11 of the Escrow Agreement; or (d) with Owner's and Licensee's prior written consent. Along with each Initial Deposit and each Supplemental Deposit, Owner shall prepare and submit to Escrow Agent a description of the Deposit Materials for each Application Set in the form attached as Attachment B. Prior to depositing any Deposits (including any Supplemental Deposits) with Escrow Agent, at its own cost and expense, Owner shall verify that all items required to be deposited into escrow as described in Attachment A are included in the Deposits, and that all Deposits that are stored on electronic media can be accessed from that media (meaning, for example, that the media is not defective, etc.). 1.2 Escrow Agent Obligations. In addition to the other duties and obligations imposed upon Escrow Agent as set forth in the Escrow Agreement: a. Escrow Agent shall notify Licensee as to the receipt of each Initial Deposit and each Supplemental Deposit according to the procedures specified in Section 1.2(b). Escrow Agent's responsibilities under this provision shall be limited to checking the label and quantity of the Deposits received to identify whether the items described in Attachment B have been received, and shall not include determining whether the purported contents of such boxes or packages actually contain the necessary information Owner is required to submit as part of the Deposits; however, Escrow Agent's responsibilities under this provision shall not be reduced or diminished by Owner's submission of a description of Deposit Materials as described in Attachment B. b. Upon completing the inspection described in subsection (a) for each Initial Deposit and each Supplemental Deposit (which inspection shall be completed within ten (10) business days following Escrow Agent's receipt of the applicable Deposits), Escrow Agent promptly shall so notify Licensee by issuing to Licensee an executed copy of Attachment B. c. Escrow Agent shall separately identify the Deposits through a deposit account number and shall segregate the Deposits from any other Owner materials that may be in the possession of Escrow Agent. d. Escrow Agent shall store the Deposits in dedicated media storage containers (each, a "Storage Unit"). The cost of the first Storage Unit is included in the annual maintenance/storage fee set forth in Attachment D. Costs for additional Storage Units are detailed in Attachment D. e. Escrow Agent shall safeguard, safekeep and maintain the Deposits in accordance with generally accepted industry standards applicable for a source code escrow company. Escrow Agent shall establish a locked receptacle in which it shall place the Deposits, which receptacle shall be under the administration of one (1) or more of its officers, selected by Escrow Agent, whose identity shall be available to Owner and Licensee at all times. Escrow Agent shall exercise a professional level of care in carrying

3 out the terms of the Escrow Agreement. Escrow Agent shall secure insurance covering its obligations to safeguard, safekeep and maintain the Deposits and, upon Licensee's request, shall provide to Licensee written evidence of such insurance. Under no circumstances shall Escrow Agent be liable for breach or delay in performance under the Escrow Agreement due to hostile or warlike action in time of peace or war, including action in hindering, combating or defending against an actual, impending or expected attack, military action or governmental action or other peril not ordinarily covered by typical general commercial liability and errors and omissions insurance maintained by an escrow company and not covered by the insurance actually maintained by Escrow Agent. The parties agree that the amount of insurance that Escrow Agent shall have in effect during the term of the Escrow Agreement for the deposits in Owner's possession (including, without limitation, the Deposits) shall be at least One Million Dollars ($1,000,000), and that such insurance (in such amount) shall: (i) cover Licensee against damages incurred as a result of the destruction of, or damage to, the Deposits; and (ii) name Licensee as an additional insured. f. Escrow Agent acknowledges Owner's assertion that the Deposits contain proprietary data and that Escrow Agent has an obligation to preserve and protect the confidentiality of the Deposits. Except as provided in the Escrow Agreement, Escrow Agent shall not divulge, disclose or otherwise make the Deposits available to any third person, or make any use of the Deposits, without the express prior written consent of Owner. 1.3 Limitation of Liability. UNDER NO CIRCUMSTANCE SHALL ESCROW AGENT BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) ARISING OUT OF THE ESCROW AGREEMENT UNLESS ESCROW AGENT PERFORMS ITS DUTIES HEREUNDER IN A NEGLIGENT, GROSSLY NEGLIGENT, OR WILLFUL AND MALICIOUS MANNER. ARTICLE 2 TERM AND TERMINATION OF ESCROW AGREEMENT 2.1 Term. Upon payment of the initialization fee and first annual maintenance/storage fee set forth in Attachment D, the Escrow Agreement shall remain in full force and effect for as long as the License remains in effect unless earlier terminated as provided herein. The Escrow Agreement shall renew automatically on an annual basis for successive one (1)-year renewal terms, provided Escrow Agent receives the renewal fees as provided in Article 9 of the Escrow Agreement prior to the last day of the initial term or any subsequent renewal term. However, Escrow Agent shall be entitled to extend the term of the Escrow Agreement to cover the processing of any outstanding instruction made during the term of the Escrow Agreement. If the Escrow Agreement is not renewed or is otherwise terminated in accordance with the terms and conditions set forth herein at the end of any initial or any renewal term, all duties and obligations of Escrow Agent to Owner and Licensee will terminate. Escrow Agent's obligations to hold and maintain the Deposits relating to a particular Application Set shall cease immediately upon delivery of such Deposits to Licensee or to Owner in accordance with the provisions of the Escrow Agreement.

4 2.2 Termination. The Escrow Agreement shall be terminated in its entirety: (a) upon a joint, written notice of termination by Licensee and Owner delivered to Escrow Agent in accordance with the terms set forth herein; (b) upon delivery of all Deposits for all Software to Licensee in accordance with the terms set forth herein; or (c) by Escrow Agent upon the failure to pay the initial fees or any renewal fees as provided in Sections 9.3 and 9.4. The Escrow Agreement shall be terminated with respect to a particular Application Set only: (d) upon a joint, written notice of termination with respect to such Application Set by Licensee and Owner delivered to Escrow Agent in accordance with the terms set forth herein; or (e) upon delivery of the Deposits for such Application Set to Licensee in accordance with the terms set forth herein. Upon a subsection (a), (c) or (d) termination event, the Deposits for the applicable Software shall be returned to Owner, provided Owner pays any fees that may then be owed to Escrow Agent and the Deposit return fee set forth in Attachment D. ARTICLE DISCLOSURE EVENTS An event requiring the release of the Deposits to Licensee ("Disclosure Event") shall be deemed to have occurred under the Escrow Agreement upon: 3.1 Owner's failure to cure any material breach of its support and maintenance services obligations under the License ("Support Services") in accordance with the terms of the License (including the applicable time frame for effectuating a cure); or 3.2 Owner's discontinuation of any part of Support Services for any of the Software across its customer base generally; or 3.3 Owner's election to discontinue making any part of the Support Services available to Licensee on commercially reasonable terms for any reason other than Licensee's uncured material breach of its obligation to pay Owner for Support Services, provided Licensee would like to continue receiving Support Services from Owner; or 3.4 Owner's failure to comply with its obligations under Section 1.1, provided that such failure remains uncured for a period of thirty (30) calendar days following Owner's receipt of written notice thereof; or 3.5 Owner's material breach of its obligations under Article 11 (including, without limitation, Owner's failure to provide additional, corrective and/or replacement Deposits in accordance with Attachment E which causes the Licensee Verification process to exceed a thirty (30) calendar day period), provided that such material breach remains uncured for a period of thirty (30) calendar days following Owner's receipt of written notice thereof; or 3.6 The institution of bankruptcy, receivership, reorganization or other similar proceedings by or against Owner under the Federal Bankruptcy Code, if: (a) such proceedings have not been dismissed or discharged within thirty (30) calendar days after they are instituted; (b) Owner or a trustee has failed to accept the License within fifteen (15) calendar days after such proceedings

5 are instituted; or (c) Owner or a trustee elects or files pleadings to reject the License at any time after such proceedings are instituted; or 3.7 Owner makes an assignment for the benefit of creditors; or 3.8 Owner makes an assignment in violation of Section 12.3 or the assignment provisions set forth in the License; or 3.9 Owner undergoes a "Change in Control" as defined in the License. ARTICLE 4 NOTICE OF DISCLOSURE EVENT AND DELIVERY OF DEPOSITS 4.1 If Licensee believes that a Disclosure Event has occurred, Licensee shall provide written notice of such Disclosure Event to Owner. Within seven (7) calendar days after receiving such notice, Owner shall either: (a) cure the Disclosure Event; (b) provide a written explanation to Licensee that is satisfactory to Licensee in its sole discretion explaining why the Disclosure Event has not occurred; or (c) provide to Licensee a plan to cure the Disclosure Event that is satisfactory to Licensee in its sole discretion. If Owner fails to: (d) cure the Disclosure Event; (e) provide an explanation to Licensee as provided in Section 4.1(b); or (f) provide a corrective plan to Licensee as provided in Section 4.1(c); then by written notice to Escrow Agent, Licensee shall have the right to demand that the Deposits be delivered to Licensee by Escrow Agent (the "Demand Notice"). Such Demand Notice shall be accompanied by an affidavit signed by an authorized representative of Licensee attesting to a full description of the Disclosure Event. The affidavit must be dated and sworn to within the ten (10) business day period prior to receipt of the Notice by the Escrow Agent. Escrow Agent shall send Owner a copy of each request and any related materials received from the Licensee (including the affidavit) within three (3) calendar days of receipt. 4.2 Unless Escrow Agent receives an original order or certified copy of an order of a court of competent jurisdiction as described in Section 4.3 restraining Escrow Agent from making delivery of the Deposits to Licensee, then Escrow Agent shall deliver the Deposits to Licensee on the twenty-first (21 st ) calendar day after the date of its receipt of the Demand Notice; provided that Escrow Agent shall not be required to deliver the Deposits until Licensee has made all payments to Escrow Agent for any fees described under Article 9 of the Escrow Agreement that remain unpaid at the time the Deposits are due to be delivered to Licensee (and Owner shall reimburse Licensee for any fees paid by Licensee that are Owner's responsibility under the terms of the Escrow Agreement promptly following Licensee's request). In no event shall Licensee be required to pay for any legal fees incurred by Escrow Agent except as provided in Article Owner's exclusive and only right to challenge Licensee's demand for delivery of the Deposits shall be through: (a) instituting an appropriate action in a court of competent jurisdiction; and (b) within the twenty-one (21) calendar day period after Escrow Agent's receipt of the Demand Notice, causing the delivery to and receipt by Escrow Agent of an order of such court restraining Escrow Agent from making delivery of the Deposits to Licensee (an "Order"). The sole basis for the entry of such an Order shall be the absence of a Disclosure Event. If

6 Owner obtains such an Order, any right Licensee may have to receive the Deposits that are the subject of such Order shall be determined by the court. 4.4 Escrow Agent's sole responsibility is to review the Demand Notice and affidavit from Licensee for execution in accordance with the Escrow Agreement. Escrow Agent shall have no duty to investigate the facts set forth in the Demand Notice or the affidavit including, without limitation, whether a Disclosure Event exists, or any other document, and shall be entitled to act upon receipt of a properly executed affidavit. ARTICLE 5 INDEMNIFICATION OF ESCROW AGENT Escrow Agent, by reason of its execution of the Escrow Agreement, shall not assume any responsibility or liability for any transactions between Owner and Licensee other than for the performance of Escrow Agent's obligations with respect to the Deposits held by it in accordance with the Escrow Agreement. The party on whose behalf, or pursuant to whose direction, Escrow Agent acts, shall indemnify, defend and hold harmless Escrow Agent from any and all liability, damages, costs or expenses, including reasonable attorneys' fees, which may be sustained or incurred by Escrow Agent as a result of taking such action. Absent any such direction, the parties shall jointly and severally indemnify and hold harmless Escrow Agent from any and all liability, damages, costs or expenses, including reasonable attorneys' fees, except for any liability, damages, costs or expenses that may be sustained or incurred as a result of: (a) the negligent or willful misconduct of Escrow Agent, its employees or agents; or (b) Escrow Agent's breach of its duties under the Escrow Agreement. Escrow Agent is not a party to, or bound by, any provisions contained in the License, and with respect to the Deposits acts as a depository only and is not responsible or liable in any manner whatever for the sufficiency, correctness, genuineness or validity of the License, or with respect to the form or execution of the same, or the identity, authority or right of any person executing the same or depositing the Deposits. This indemnification shall survive the termination of the Escrow Agreement. ARTICLE 6 COMPLIANCE WITH ORDERS OF COURT Escrow Agent is expressly authorized to comply with and obey any and all orders, judgments or decrees of any court of competent jurisdiction, and in case Escrow Agent complies with any such order, judgment or decree, it shall not be liable to the parties or to any other person or entity by reason of such compliance. In complying with the foregoing, if Escrow Agent becomes or is made a party to any court proceeding that affects the Escrow Agreement, the parties or the Deposits, Escrow Agent shall promptly give written notice of such order or directive to Owner and Licensee and comply therewith. Owner or Licensee, as applicable, shall hold Escrow Agent harmless from any loss or expense incurred by Escrow Agent as a result of following the instructions given by Owner or Licensee, as the case may be. To the extent possible in any such proceedings, Escrow Agent shall interplead Owner and Licensee, and Owner and Licensee shall take all actions necessary to assume complete responsibility for such proceedings.

7 ARTICLE 7 LOCATION AND CONDITION OF DEPOSITS Except to the extent provided otherwise herein, the parties acknowledge that the Deposits will be stored in accordance with Escrow Agent's standard escrow operating procedures. Escrow Agent shall maintain the environmental conditions within the vault within normal operating temperatures and humidity. For purposes of the Escrow Agreement, normal operating temperatures and humidity shall mean temperatures and humidities at or near the range usually maintained for ordinary computer media storage. Owner and Licensee shall not hold Escrow Agent liable for any damages or claims resulting from loss of data that may occur: (a) solely as a result of self-destruction or disintegration of a tape or disk; (b) solely because of defects of the tapes or disks on which the data is stored; or (c) solely because such tapes or disks are sensitive to the normal operating temperatures and humidity in the vault. ARTICLE 8 RESIGNATION OF ESCROW AGENT If Escrow Agent wants to resign for any reason, it shall give Owner and Licensee sixty (60) calendar days prior written notice of such resignation, and within said sixty (60) calendar day period, Owner and Licensee jointly shall appoint and designate a successor escrow agent to stand in the place and stead of Escrow Agent under the Escrow Agreement. Following such appointment and designation, Escrow Agent shall forthwith deliver the Deposits to the successor escrow agent. If the parties do not appoint a successor escrow agent within said sixty (60) calendar day period, Escrow Agent may apply to a court of competent jurisdiction for the appointment of a successor escrow agent, and any costs incurred in connection therewith shall be borne by Licensee and Owner equally. The Escrow Agreement shall terminate when Escrow Agent delivers the Deposits to the successor escrow agent. ARTICLE 9 FEES AND EXPENSES OF THE ESCROW AGENT 9.1 Except as otherwise provided herein, Owner shall pay the fees set forth in Attachment D or in the then-current fee schedule of Escrow Agent, which fee schedule shall be subject to the terms set forth in Attachment D and shall be provided to Owner and Licensee ninety (90) calendar days prior to any fee change. Such fees are subject to periodic review by the management of Escrow Agent in accordance with its pricing policies. 9.2 Notwithstanding anything in the Escrow Agreement to the contrary, except for any acts taken by Escrow Agent at the direction of Licensee or Owner pursuant to Article 5 (for which the requesting party will bear financial responsibility), Owner and Licensee shall each reimburse Escrow Agent for fifty percent (50%) of any extraordinary costs which Escrow Agent may incur including, without limitation, the costs of hiring or retaining any agents or attorneys; provided, however, that Escrow Agent shall provide ten (10) calendar days advance written notice to Owner and Licensee before incurring any extraordinary costs.

8 9.3 Initial fees shall be invoiced by Escrow Agent upon the Effective Date. If the initial fees are not paid within thirty (30) calendar days of the Effective Date, Escrow Agent shall notify Licensee and Owner with a notice in the form of Attachment C. Such notice shall be sent in accordance with the notice procedures specified herein. If the initial fees are not received within thirty (30) calendar days following Licensee's and Owner's receipt of such notice, Escrow Agent may terminate the Escrow Agreement without further notice or liability to Owner or Licensee. 9.4 Each year during the term of the Escrow Agreement, Escrow Agent shall invoice Owner for the renewal fees ninety (90) calendar days prior to the anniversary of the Effective Date. If the renewal fees are not received sixty (60) calendar days prior to the anniversary of the Effective Date, Escrow Agent shall notify Owner and Licensee that the renewal fees have not been received by providing Owner and Licensee with a notice in the form of Attachment C. Such notice shall be sent in accordance with the notice procedures specified herein. If the renewal fees are not received by the anniversary of the Effective Date, Escrow Agent may terminate the Escrow Agreement without further notice or liability to Owner or Licensee. ARTICLE 10 ANNUAL REPORTS Escrow Agent shall keep records of the activities undertaken and materials prepared pursuant to the Escrow Agreement. Escrow Agent shall issue to Owner and Licensee an annual report profiling the Deposit account or otherwise make the information described in this Article available to Owner and Licensee. Such annual report shall identify Owner and Licensee, their respective then-current designated contacts, selected special services and the Deposit history, including all Initial Deposits, Supplemental Deposits, the begin and end dates of any Licensee Verifications under Article 11 and/or releases of the Deposits and any instructions related thereto. Subject to Licensee's verification rights under Article 11, upon reasonable notice, during Escrow Agent's normal business hours and during the term of the Escrow Agreement, Owner or Licensee shall be entitled to inspect the records of Escrow Agent pertaining to the Escrow Agreement. Neither Owner nor Licensee shall be entitled to remove or replace any of the Deposit Materials during the audit period. ARTICLE 11 VERIFICATION PROCESS The Deposits shall be subject to verification for accuracy, completeness and sufficiency in accordance with the verification process set forth in Attachment E. ARTICLE 12 MISCELLANEOUS 12.1 Further Assurances. Each of the parties shall from time-to-time execute and deliver all such further documents and instruments and do all acts and things as any other party may reasonably require to effectively carry out the intent and meaning of the Escrow Agreement.

9 12.2 Amendments and Waiver. No modification of or amendment to the Escrow Agreement shall be valid or binding unless set forth in writing and duly executed by the parties. No waiver of any breach of any term or provision of the Escrow Agreement shall be effective or binding unless made in writing and signed by the party against whom enforcement is sought, and any such waiver shall be limited to the specific breach waived Assignment. Subject to the remaining provisions of this Section 12.3, Licensee, Owner or Escrow Agent shall not assign or otherwise transfer the Escrow Agreement in whole or in part (whether by operation of law or otherwise) to any third party without the prior written consent of the other parties. Upon Owner's or Licensee's assignment or transfer of the License to a third party as may be permitted under the License, the Escrow Agreement automatically shall be assigned or transferred to such third party, and the assigning or transferring party promptly shall deliver a written notice of same to the Escrow Agent. The terms and conditions of the Escrow Agreement shall be binding upon and inure to the benefit of the parties' respective successors and permitted assigns, whether such transfer or assignment occurs by merger, consolidation, purchase, operation of law or otherwise. All assignments or other transfers in violation of the foregoing shall be null and void and have no force or effect Notices. Any demand and/or notice to be given in connection with the Escrow Agreement shall be given in writing and may be given by personal delivery, registered or certified mail, or by overnight courier except for demands and/or notices required to be given in connection with Article 4, which shall be given by overnight courier addressed to the recipient as follows: If to Owner: Contractor Attention: If to Licensee: NYSDEC 625 Broadway, 5 th Floor Albany, New York Attention: Telecopy: (518) XXX-XXXX

10 With a copy to: Contractor Attention: If to Escrow Agent: With a copy to: NYSDEC 625 Broadway, 5th Floor Albany, NY Escrow Agent Name Line 1 Address Line 2 Address City, State Zip Code Attention: Chief Executive Officer or to such other address or individual as may be designated hereafter from time to time by notice given by any party to the other parties. Any demand, notice or other communication shall be deemed to have been received: (a) if given by personal delivery, on the calendar day of actual delivery thereof; (b) if given by overnight courier, the next business day; or (c) if given by registered or certified mail, on the third (3 rd ) calendar day following the deposit thereof in the mail Severability. If any provisions of the Escrow Agreement shall for any reason be held illegal or unenforceable, such provision shall be deemed separable from the remaining provisions of the Escrow Agreement and shall in no way affect or impair the validity or the enforceability of the remaining provisions of the Escrow Agreement Headings. The division of the Escrow Agreement into Sections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of the Escrow Agreement. The terms "the Escrow Agreement," "hereof," "hereunder" and similar expressions refer to the Escrow Agreement and not to any particular Section or other portion hereof and include any supplemental agreement. Unless something in the subject matter or context is inconsistent therewith, references herein to Sections are to Sections of the Escrow Agreement Attorneys' Fees. If either of Owner or Licensee brings an action, suit or proceeding against the other arising out of or relating to the Escrow Agreement, or pertaining to a declaration of rights under the Escrow Agreement, the trier of fact may, in the exercise of its discretion, award the party it finds to be the prevailing party in such action, suit or proceeding that portion or all of its fees, costs and expenses (including court costs and reasonable fees for attorneys and expert witnesses) that it deems to be appropriate under the facts and circumstances. The term "prevailing party" for purposes of this Section shall include a defendant who has by motion, judgment, verdict or dismissal by the court, successfully defended against any claim that has been asserted against it.

11 12.8 Governing Law; Exclusive Jurisdiction. The Escrow Agreement, and all the rights and duties of the Parties arising from or relating in any way to the subject matter of the Agreement or the transaction(s) contemplated by it, shall be governed by, construed and enforced only in accordance with the laws of the United States and the State of New York (excluding any conflict of laws provisions that would refer to and apply the substantive laws of another jurisdiction). THE PARTIES AGREE TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE APPLICABLE COURTS LOCATED IN THE STATE OF NEW YORK Attachments. The following are Attachments annexed and incorporated by reference and deemed to be part of the Escrow Agreement: Attachment A Deposits Attachment B Description of Deposit Materials Attachment C Notice Attachment D Escrow Fees Attachment E Verification Process Counterparts; Facsimile Signatures. The Escrow Agreement may be executed in one (1) or more duplicate originals, all of which together shall be deemed one and the same instrument. The Escrow Agreement shall be binding on the parties through facsimile signatures, with originals to follow by regular mail Defined Terms. As used in the Escrow Agreement, capitalized terms shall have the meanings specified in the Escrow Agreement or, if not defined herein, in the License Nature of Agreement and Deposits. The parties acknowledge and agree that the Escrow Agreement is an agreement supplementary to the License as defined under Section 365(n) of the United States Bankruptcy Code, 11 U.S.C. 101, et. seq Entire Agreement. The Escrow Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and cancels and supersedes any prior understandings and agreements between the parties with respect thereto. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the parties other than as expressly set forth in the Escrow Agreement.

12 IN WITNESS WHEREOF, authorized representatives of the parties have executed the Source Code Escrow Agreement on the day and in the year as set forth above. OWNER: [Contractor] By: Its: Date: ESCROW AGENT: Escrow Agent Name By: Its: Date: LICENSEE: NYSDEC By: Its: Date: